Articles Tagged with republication

Most of the attention being paid to Johnny Depp’s defamation suit against Amber Heard has been about the fact he brought it in Virginia rather than in California where both of them live. Most speculate Depp chose Virginia due to the fact its anti-SLAPP law is more hospitable to celebrities and public figures than California’s. He has already been rewarded with a ruling permitting the case to remain in Virginia even if all potential witnesses and evidence are located in California. If that ruling wasn’t enough to lead to the supposition that this case is destined to be decided by the Virginia Supreme Court rather than the Circuit Court of Fairfax County, we now have another interesting ruling in an area in which there’s not a lot of controlling precedent: what it takes to “republish” a defamatory statement and thereby re-start the running of the one-year statute of limitations. That last time Virginia saw a controversial ruling involving the republication doctrine was in Eramo v. Rolling Stone, which was settled shortly after it was appealed. If I had to guess, I would predict that the next Virginia Supreme Court opinion dealing with republication is going to be Depp v. Heard (or, rather, Heard v. Depp).

For those not already aware, Johnny Depp is suing his ex-wife, actress Amber Heard, for an op-ed she wrote for The Washington Post at the end of 2018. The article, entitled “Amber Heard: I spoke up against sexual violence—and faced our culture’s wrath. That has to change,” does not identify Depp by name but, according to Depp, nevertheless implied to readers that Depp is a domestic abuser. In particular, he took issue with the following statements: (1) “I spoke up against sexual violence—and faced our culture’s wrath.” (2) “Then two years ago, I became a public figure representing domestic abuse, and I felt the full force of our culture’s wrath for women who speak out.” (3) “I had the rare vantage point of seeing, in real time, how institutions protect men accused of abuse.” and (4) “I write this as a woman who had to change my phone number weekly because I was getting death threats. For months, I rarely left my apartment, and when I did, I was pursued by camera drones and photographers on foot, on motorcycles and in cars. Tabloid outlets that posted pictures of me spun them in a negative light. I felt as though I was on trial in the court of public opinion—and my life and livelihood depended on myriad judgments far beyond my control.” The Fairfax County Circuit Court held that with the exception of statement #4, these statements were sufficient to imply to readers that Depp is a domestic abuser, considering the couple’s highly publicized divorce in 2016. Key to this conclusion was the court’s determination that the 2018 op-ed amounted to a republication of Heard’s direct accusations against Depp back in 2016.

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Under the single-publication rule, a defamatory statement posted online will be treated as a single publication, made at the time of posting, regardless of when and how many people actually view the content. Without such a rule, Virginia’s one-year statute of limitations would be rendered meaningless, because a new cause of action would arise each time a new person clicked a link leading to defamatory content, even if that were to occur 10 or 20 years from the date the material was originally uploaded. At the same time, however, Virginia law imposes liability against those who “republish” a defamatory statement, even if republication occurs after the statute of limitations has run on the original statement. When pursuing libel remedies for a statement uploaded to the internet over a year ago, consider whether the statement has been republished by anyone within the past 12 months.

This approach was tried, albeit without success, by the plaintiff in Svetlana Lokhova v. Stefan A. Halper. Ms. Lokhova is a Russian-born British historian and author whose work has focused on the Soviet intelligence service. She had some contact with former National Security Adviser Michael Flynn back in 2014–minimal contact, according to the complaint. She says she met him briefly at a dinner in England and exchanged only a few emails afterwards. Various press accounts in 2017 noted that certain individuals had expressed concern upon learning that the head of the Defense Intelligence Agency appeared to have a friendly relationship with a Russian woman with alleged ties to Russian intelligence–surmising among other things that such a connection could make Flynn susceptible to extortion. One example cited in the complaint is this passage from a New York Times article:

The informant also had contacts with Mr. Flynn, the retired Army general who was Mr. Trump’s first national security adviser. The two met in February 2014, when Mr. Flynn was running the Defense Intelligence Agency and attended the Cambridge Intelligence Seminar, an academic forum for former spies and researchers that meets a few times a year. According to people familiar with Mr. Flynn’s visit to the intelligence seminar, the source was alarmed by the general’s apparent closeness with a Russian woman who was also in attendance. The concern was strong enough that it prompted another person to pass on a warning to the American authorities that Mr. Flynn could be compromised by Russian intelligence, according to two people familiar with the matter.

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